My girlfriend and I are separating and own a house together,

Hi, My girlfriend and I are...

Hi,My girlfriend and I are separating and own a house together, we bought the house almost four years ago.I paid the entire deposit of £37,950All other costs were paid equally.The mortgage and all bills have been paid equally by means of a joint account to which we both contributed equal amounts.All finances not related to the property remained separate.We discussed and subsequently had a declaration of trust drawn up to ensure that upon sale of the home I would get my initial deposit back and the remainder be split equally.Our financial advisor at the time advised us to have the declaration of trust drawn up and was a witness to us agreeing on the terms.The has file notes from the time confirming that we were both agreed on signing the declaration of trust.The declaration of trust was never signed.She is maintaining that although it was discussed, she never agreed to enter into the declaration of trust. She is now demanding 50% of the equity in the property amounting to £25000, she is only entitled to circa £6000.I never intended my deposit as a gift but I cannot prove this.Do I have a strong enough case to take her to court?

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask if you know if anything was recorded on the transfer deed when you purchased the property in terms of your respective shares?

On what basis does your girlfriend contend she is entitled to a 50% share? Simply because she is a joint owner?

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Customer reply replied 6 months ago

1) The TR1 document states that the property will be held in accordance with the declaration of trust.2) Yes, she is contending that because she didn't sign the declaration of trust and we are joint owners she is entitled to a 50% share.

Thank you. Could you give me the exact wording from the transfer deed if you have it to hand? Did you both sign the TR1?

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Customer reply replied 6 months ago

According to the land registry document we own the property as tenants in common. There is no provision for our respective shares. I do not have the TR1 to hand however at paragraph 10 it states that the declaration of trust has been prepared and the property will be held in accordance with the provisions of the declaration of trust.I am unsure whether we both signed the TR1, I would have thought this is normal practice?

Thanks. You will need to obtain the TR1 to be sure but if the TR1 contains a reference to an identifiable declaration of trust and you have both signed it (it is not necessary for you to sign a TR1 as buyers so this is not a foregone conclusion then this will be very strong evidence that a declaration of trust exists. A declaration of trust can mean established in a Transfer deed (TR1) and this is just as binding as a separate declaration of trust - it is just that it willusually be much less detailed due to space limitations hence why many people prefer to draw up a separate declaration of trust.

in order to obtain a copy of the transfer deed, you can contact the land registry using contact details from the following link:

https://www.gov.uk/guidance/contact-hm-land-registry

if you can establish that a declaration of trust was agreed in the transfer deed, then this will be very helpful because the decision in Pankhania v Chandegra [2012] EWCA Civ 1438 makes it very clear that where two parties have entered into a declaration of trust that is not possible for either party to stick to vary that declaration of trust. In other words your girlfriend will be bound by the terms of that declaration of trust whether she likes this or not. The only caveat would be if she could show that you subseuently gave her some assurance that you would provide her with a greater share of the property and she relied upon at assurance though the burden of proof would be upon her to show this and I assume she would have no evidence to support such a claim.

If you cannot establish that a declaration of trust exists as discussed above then you can make an application under the trust of land and appointment of Trustees act for a judge to impose what is called a constructive trust to determine your respective shares in the property. A constructive trust can be imposed by the court on such terms as the court thinks fit having taken into account all of the evidence. In the absence of an express declaration of trust, the presumption is that each party will own 50% of the property where the own as joint tenants but this presumption can be rebutted by one party demonstrating evidence that it was not intended that the other party should own a share greater than the amounts reflecting the contributions made by the party. In other words, you did not intend to make a gift of your much larger financial contributions to your girlfriend. This can sometimes be quite a challenge as a result a lack of documentation in this respect that in your case it does not appear to be so as you would appear to have an abundance of documentation which leaves very little doubt that you intended that the property should be owned on shares set out in the declaration of trust. Accordingly you would appear to have the makings of a strong claim.

in order to move forward, you may in the first instance consider proposing mediation whereby qualified legal adviser sits down with you both and explains your respective rights with the aim of trying to reach an agreement. If that fails or one or both of you decide you do not wish to enter into any kind mediation then you can issue an application in the County Court for an order under the above Act for a judge to impose a settlement. You can find a local solicitor that specialises in this type of claim locally by visiting the following link. Many solicitors operating under the below organisation will offer a free initial consultation:

http://resolution.org.uk/

Does the above answer all your questions? If it does, I should be very grateful if you would kindly take a moment to click a rating for my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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Customer reply replied 6 months ago

Okay, so to clarify.In my case there is a separate declaration of trust which the TR1 references at paragraph 10. The separate declaration of trust was never signed. The TR1 itself does not contain any information as to the terms of said declaration of trust, it is all laid out in a separate document. If the TR1 is signed by both of us, is the separate declaration of trust binding?

You will appreciate that it is difficult for me to definitive without seeing the actual documents but if you find the TR1 is signed by both of you and refers explicitly to the declaration of trust so it can be identified then this would prove a very strong argument that the terms of the declaration of trust take effect as an express declaration of trust. If you fall short of these requirements then the fact that you have gone through the motions of preparing a declaration of trust, that it is referred to in the TR1 will still be a basis for a strong claim. People have won such claims with far less than this (e.g. Stack v Dowden 2007)

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).